Pittsburgh PA – The PA Supreme Court has ruled Act 13 is unconstitutional on the grounds that it violates the Environmental Rights Amendment to the Pennsylvania Constitution. Notably, the Court stated, ““As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” Opinion at 117.

Additionally, the Court stated, ““By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Opinion at 118.

The Pennsylvania Supreme Court has ruled that Act 13 violates the Pennsylvania Constitution. In doing so, the Court struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district. The Court’s decision upholds the ability of local governments to protect their local communities and natural resources through zoning. Chief Justice Castille authored the historic majority opinion. Justices Todd, McCaffrey and Baer joined in the result.

Justices Castille, Todd, and McCaffrey held that the provisions violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people.

Justice Baer concurred in finding Act 13 unconstitutionality, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.

“The Court has vindicated the public’s right to a clean environment and our right to fight for it when it is being trampled on. Today the environment and the people of Pennsylvania have won and special interests and their advocates in Harrisburg have lost. This proves the Constitution still rules, despite the greedy pursuits of the gas and oil industry. With this huge win we will move ahead to further undo the industry’s grip of our state government,” said Maya van Rossum, the Delaware Riverkeeper.

“This is a great historic victory for local democracy, for public health, and for the health of our environment. The shale gas industry overreached, greedily wanting to operate without respecting local concerns and without playing by the same set of rules everyone else has to play by. The Corbett Administration and the General Assembly went along with it and tried to give away our rights to the gas industry. The Supreme Court has made it clear that what they were trying to do violates our state Constitution. It’s a great day for the Constitution and the people of the Commonwealth”, said Jordan Yeager, counsel for the plaintiffs.

“The gas industry tried to take over every inch of every municipality in Pennsylvania for drilling, regardless of the zoning rights of local governments and the residents they represent. The industry and their backers in Harrisburg overreached when they thought they could literally takeover the state, turning it into one big drilling and gas infrastructure site. We fought this law because it was illegal and because it spelled ruin for public health and the environment, even though we, as plaintiffs, didn’t have nearly the resources our powerful and well-funded opponents had. This proves, when you have the law and environmental rights on your side, it’s worth fighting and you can win,” said Tracy Carluccio, Deputy Director, DelawareRiverkeeper Network.

The Pennsylvania Supreme Court also reversed Commonwealth Court’s finding that the Delaware Riverkeeper Network lacked standing in this case. Specifically, the court found that DRN’s members engendered “a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote.” Opinion at 21-22. Furthermore, the court also found that Maya van Rossum, as the Executive Director of the Delaware Riverkeeper Network, also has standing in her official capacity to represent the membership’s interests.” Opinion at 22. The ruling therefore sets important precedent for what immediate interest or harm environmental organizations and their members need to demonstrate in order to properly establish standing.

Additionally, in a reversal of the findings of the Commonwealth Court, the Pennsylvania Supreme Court found that Dr. Khan satisfies standing requirements. The court noted that “existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.” Opinion at 25. In other words, provisions of Act 13 put Dr. Khan in the untenable and objectionable position of choosing between violating Act 13’s confidentiality agreement and “violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care.” Id. Therefore, Dr. Khan’s interests were indeed “substantial and direct…not remote,” and conferred standing. Opinion at 26. The Court remanded Dr. Kahn’s case to the Commonwealth Court for further proceedings.

Background:

Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh Khan filed a legal pleading in Commonwealth Court on March 29, 2012 challenging Act 13, also known as HB1950, which was signed into law by Governor Corbett on February 14, 2012. The municipalities are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County. Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also establishes an impact fee on natural gas. The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).

The Petitioners argued that Act 13 is an unconstitutional violation of: 1) Article I, Section 1 of the Pennsylvania Constitution; 2) Section 1 of the 14th Amendment to the United States Constitution; 3) Article III, Section 32 of the Pennsylvania Constitution; 4) Article I, Section 27 of the Pennsylvania Constitution; 5) Article III, Section 3 of the Pennsylvania Constitution; 6) Due Process Principles; and 7) The Doctrine of Separation of Powers. The legal challenge was considered essentially important for the Appellees because Act 13 guts local zoning of gas and oil operations and endangers public health, natural resources, communities and the environment.

On July 26, 2012 the Commonwealth Court declared the statewide zoning provisions in Act 13 unconstitutional, null, void and unenforceable. The Court also struck down the provision of the law that required DEP to grant waivers to the setback requirements in Pennsylvania’s Oil and Gas Act. On October 17, 2012 the Pennsylvania Supreme Court heard argument that Pennsylvania’s Act 13 is unconstitutional, unjustly supersedes all local ordinances related to oil and gas operations, extinguishes municipal zoning of these operations, and exposes the public and the environment to pollution and degradation from these activities. Attorneys for the case appeared before the Court, which heard the Commonwealth’s appeal of the Commonwealth Court’s declaration that overturned the municipal preemption provisions and environmental waiver provisions of Act 13.

The Court has been deliberating the case since argument was heard more than a year ago.

Original Petitioners in Legal Challenge

Township of Robinson, Washington County

Township of Nockamixon, Bucks County

Township of South Fayette, Allegheny County

Peters Township, Washington County

Township of Cecil, Washington County

Mount Pleasant Township, Washington County

Borough of Yardley, Bucks County

Delaware Riverkeeper Network and the Delaware Riverkeeper

Dr. Mehernosh Khan

Municipalities represented by Natural Resources Defense Council as Friends of the Court

Wilkins Township, Allegheny County

East Finley Township, Washington County

Tinicum Township, Bucks County

Municipality of Murrysville, Westmoreland County

Municipality of Monroeville, Allegheny County

Borough of Bell Acres, Allegheny County

City of Bethlehem, Northampton and Lehigh Counties

Other Amicus Briefs filed in support of Commonwealth Court decision

Pennsylvania Chapter of the American Planning Association

Pennsylvania State Association of Boroughs

Pennsylvania State Association of Township Supervisors

Pittsburgh City Council

Mountain Watershed Association

Nonprofit organizations represented by Earthjustice as Friends of the Court

I think its important to clarify that “No Gas Here” does not mean that Bans are not needed.

As Chip has said succinctly- The “reward” of gas drilling has been grossly overstated, but the risks remain unaddressed.

Here’s some things that Caroline’s ban prevents in addition to actual drilling.

Natural Gas And/Or Petroleum Exploration Activities – Geologic or geophysical activities related to the search for natural gas, petroleum or other subsurface hydrocarbons, including prospecting, geophysical and geologic seismic surveying and sampling techniques, but only to the extent that such activities involve or employ core, rotary, or any other type of drilling or otherwise make any penetration or excavation of any land or water surface in the search for and evaluation of natural gas, petroleum, or other subsurface hydrocarbon deposits.

Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes Disposal/Storage Facility – Any of the following: (a) tanks of any construction (metal, fiberglass, concrete, etc.); (b) impoundments; (c) pits; (d) evaporation ponds; or (e) other facilities, in any case used for the storage or treatment of Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes that: (i) are being held for initial use, (ii) have been used and/or are being held for subsequent reuse or recycling, (iii) are being held for treatment, or (iv) are being held for storage.

Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes Dump – Land upon which Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes, or their residue or constituents before or after treatment, are deposited, disposed, discharged, injected, placed, buried or discarded, without any intention of further use.

Natural Gas Compression Facility – Those facilities or combinations of facilities that move natural gas or petroleum from production fields or natural gas processing facilities in pipelines or into storage; the term shall include equipment for liquids separation, natural gas dehydration, and tanks for the storage of waste liquids and hydrocarbon liquids.

Natural Gas Processing Facility – Those facilities that separate and recover natural gas liquids (NGLs) and/or other non-methane gases and liquids from a stream of produced natural gas, using equipment for any of the following: cleaning or stripping gas; cooking and dehydration; residual refinement; treating or removing oil or condensate; removing water; separating NGLs; removing sulfur or carbon dioxide; fractionation of NGLs; and/or the capture of CO2 separated from natural gas streams.

Underground Natural Gas Storage – Subsurface storage, including in depleted gas or oil reservoirs and salt caverns, of natural gas that has been transferred from its original location, whether for the purpose of load balancing the production of natural gas or for any other reason, including without limitation short-term, long-term, or intermittent storage for product quality, processing, or transportation purposes, or because of market conditions. Without limitation, this term includes compression and dehydration facilities, and associated pipelines.

Hope this helps clarify why we still need Town Bans even if there is not a profitable amount of gas to recover in Tompkins County. Without a ban, you town is still susceptible to all the above risks from drilling in neighboring areas.

Oct. 8 — The U.S. District Court for the District of Maryland rules that local zoning laws are pre-empted by the federal Natural Gas Act. So, according to the court ruling, those portions of the town code that prevent the siting, construction or operation of the Myersville compressor station are null and void.

AVON — The Town of Avon passed a resolution Thursday evening to resume action on a 12-month moratorium on natural gas exploration and extraction, or hydrofracking. The development came after representatives from the New York State Attorney General’s Office and the New York State Department of Conservation office (DEC) approached local leaders with a proposal to shut down the brine processing plant currently operating in Leicester.

The Leicester brine processing plant exists to treat brine that is being pumped from the Azko salt mine, which collapsed in 1994. According to officials, the plant operates at a cost of $200,000 per month, currently being paid by Azko’s insurance company, Zurich.

A number of local Town Board officials were present at earlier meetings, including Supervisors from the Towns of Avon, Geneseo, Leicester, Mount Morris and York. At those meetings they were reportedly asked by Tim Hoffman, from the State Attorney General’s Office, and by other state officials, to keep the matter private. However, citing concerns for public safety, the issue was brought to the public’s attention this week in the Avon, Leicester and York Town Board meetings.

According to Town of Avon Supervisor David LeFeber, the old salt mine is still producing 15 gallons of brine, or water with very high concentrations of salt, per minute. The plant treats the brine and releases the treated water into Little Beards Creek. Without the processing plant, brine may spill into natural water sources in the region, contaminating natural water sources and potentially impacting drinking water and agriculture.

“Since we talked about this operation [hydrofracking], we thought the State was going to issue permits, the State was going to monitor things, the State was going to make sure that our resources are protected.” said Avon Town Supervisor David Lefeber. “Businesses come and go, but our ability to produce food and have fresh water is a huge thing and somebody’s got to protect that.”

The Town of Avon passed a resolution 3-2 Thursday to have Town Lawyer James Campbell begin drafting a new moratorium on hydrofracking. Board members Dick Steen and Bob Ayers voted against the resolution; David LeFeber, Tom Maiers, and Jim Blye voted for the motion.

A source with close knowledge of the situation, speaking on condition of anonymity, told theGeneseeSun.com that the DEC was recently involved in a temporary shut down of the brine processing plant, during which tests were conducted to process fracking fluid trucked up from Pennsylvania. According to the source, if successful, the plant could serve as a potential future site for processing fracking fluids.

The plant was built in 2005 and cost $8.2 million, which was paid for by Zurich, presumably as part of Akzo’s mitigation requirements.

At a Town of York Board meeting held later Thursday after the Avon meeting, the same concerns were raised. Board members expressed strong interest in obtaining independent geological and scientific surveys before even considering a shut down of the brine processing facility.

“Our job is to protect our community,” said York Deputy Supervisor Lynn Parnell.

“These towns are justifiably concerned that the State and the DEC are attempting to delay this information from being made available to the public,” said Attorney Jim Campbell, who represents the Towns of Avon, Leicester and York. “Our concern is that the ink might already be dry on a deal between the New York State Attorney General, the DEC, and Zurich. Such a deal could have profound impacts for Livingston County and should only be considered after adequate dissemination of the facts and an opportunity for public input.”